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Republic v Tenebo - judgment [2002] KIHC 97; Criminal Case 21 of 2002 (3 December 2002)

IN THE HIGH COURT OF KIRIBATI
CRIMINAL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

Criminal Case No. 21 of 2002

THE REPUBLIC

vs

TUUA TENEBO

For the Republic: Mr Tion Nabau
For the Accused: Ms Batitea Tekanito

Date of Hearing: 2 & 3 December 2002

JUDGMENT

The accused pleaded not guilty to two counts of embezzlement by a servant (S.266 (b)(ii) of the Penal Code):-

Count 1

Particulars of Offence

Tuua Tenebo, on the 20^th April 2000, whilst being employed in the public service as an Account Clerk section of the Kiribati National Audit Office, embezzled the sum of $77.75 being the salary of Taibere Kauriri, which was money entrusted to her by virtue of her employment.

Count 2

Particulars of Offence

Tuua Tenebo, on the 19^th May 2000, whilst being employed in the public service as an Account Clerk in the Account section of the Kiribati National Audit Office, embezzled the sum of $100.15 being the salary of Makin Betero, which was money entrusted to her by virtue of her employment.

I have some doubt as to whether the charges should have been larceny (section 266 (b)(i)) rather than embezzlement but as both offences are created by the same section and carry the same penalty and as the point was not taken I shall treat the charges as properly laid. The doubt arises because the Republic called no evidence to shew how the moneys to be used as pay came into the accused’s possession. It is only a technicality and I say no more about it.

In April and May 2000 the accused was employed as an Accounts Clerk in the Kiribati National Audit Office. One of her jobs was to pay members of staff. On a pay Friday the money would come from Finance, be divided into amounts to which each employee was entitled: the employee would call during the day to collect the pay and sign the Cash Report to shew that he or she had received the money.

On a spot check (or “surprise inspection” as it was called in this case) some time later it was noticed that on 20 April – actually Maundy Thursday, Good Friday being a public holiday - and 19 May several people had not signed against their names for their pay. Enquiries were made. The accused was charged.

The only evidence relating to the first count came from Mr Nawaia Tematang, a Senior Auditor. Through him the Cash Reports for April 20^th (wrongly dated 21^st April) and May 19^th were tendered, as exhibits P1 and P2 respectively. P1 shewed no signature against the name of Taibere Kauriri for an amount of $77.75. Mr Nabau invited me to find, in the absence of a signature and nothing else, no evidence from Taibere, that the accused had taken the $77.75. That evidence would have been thin enough but Nawaia said in examination in chief:-

“Other people may have received salaries at another time and not signed”. It follows that Taibere may have had his salary and not signed.

At the close of the prosecution Ms Tekanito for the accused submitted no case to answer on this count. From the prosecution evidence no jury properly directed could have been satisfied beyond reasonable doubt that the accused was guilty. The Republic had not made out a prima facie case. I accepted Ms Tekanito’s submission. The trial continued on count 2.

Nei Makin Betero gave evidence for the prosecution:-

19 May 2000 I was not at work. I didn’t get my pay. I didn’t go to pick it up but I sent my sister. She didn’t get it. On the next Monday back at work met Tuua at office: asked her for my salary. Said she had left it at home and would pick it up during lunch hour: after lunch said she didn’t manage to get home during lunch hour. I didn’t get anything that day. Went home on transport: she apologised and was on her way to church. Next day went to work: Tuua didn’t turn up: she rang up: did I need my salary or not? I said I really needed it. Said she’d been using my salary for school fees: she was going to pay it back to me. (Examination in chief).

When she telephoned asking if I needed my salary I said I really needed it. She said she was going to borrow it to make a sufficient amount for school fees for one of her children: she would pay it back to me if she got the money. I agreed because she was going to pay it back. I agreed to her keeping the money until she could pay it back. Tuua gave me a $20.00 note before the surprise inspection. I received the rest of my pay from Tuua after the surprise inspection. I did not receive my pay on the Monday after the pay Friday...... I didn’t make any complaint to anyone else except Tuua. I had not given Tuua permission to Tuua before pay Friday to take my pay.

I accept beyond reasonable doubt Nei Makin as a truthful and reliable witness, that things happened as she recounted them.

Unfortunately Ms Tekanito did not put to Nei Makin her client’s version, which was very different:-

19 May 2000 issued out salaries. Makin. No one came claiming. Makin rang up to say I must not give her salary to someone as she would not be at work that day. On the Monday she did not come to work but visited me at home. I gave her full amount of pay: then asked if I could borrow $80 from her salary for school fees. She happy and left with $20. I did not get her to sign paysheet. No safe place to keep her salary at the office. Makin had said she would pick it up from me so I didn’t leave it with anyone else. She came to work on Tuesday: I didn’t get her to sign pay sheet because we had already talked about my borrowing it. It would have been possible to get her to sign it on Tuesday but we had made the arrangement and I didn’t bother. Some employees don’t sign even though I give them their pay. I really forgot to get her to sign it. I gave her $80 perhaps on Wednesday or Thursday, only two or three days.

The accused does not have to prove anything. The burden of proof remains always on the Republic to prove beyond reasonable doubt every element of the embezzlement by a servant. Having heard the accused I still did not have any reason to doubt the accuracy and reliability of Nei Makin’s evidence.

Nawaia said that if an employee did not collect his or her salary it was Tuua’s responsibility to return the money to Finance. The accused gave what I can only describe as a quite unbelievable account of the laxness in the Audit Office of the system for making out the pays and what should be done with unclaimed pay.

The accused had kept Nei Makin’s pay when she did not come to collect it on Friday 19^th May. She took it home and used it for her own purposes. She persuaded Nei Makin, most reluctantly, to consent to her keeping the money indefinitely as a loan. Perhaps the accused was able to persuade Nei Makin as she is Nei Makin’s aunt.

Ms Tekanito in opening the defence case preshadowed calling the victim’s sister. I allowed an adjournment when she did not turn up in court. She never came. Eventually we went on without her.

The offence of embezzlement was complete on Friday 19^th May 2000 when the accused took home, without the permission of Nei Makin or of anyone else, Nei Makin’s pay, $100.15. Count 2 is proved beyond reasonable doubt.

The accused is guilty of one count of embezzlement by a servant.

Dated the day of December 2002

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE